Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-28
SUPREME COURT.
Synopsss of Decisions Rendered at the
Present Tyler Sitting.

Synopsss of Decisions Rendered at the
Present Tyler Sitting.
Correspondence of the Gazette.
TYLER, TEX, Nov. 25-Pscihc Ex-
press Company vs.. Darnell Bros ; ap
peal from Van Zsndt. Suit by appellees
to recover damages for regIlgently de-
laying the shipment of the cylinder of S
mill for fourteen days after it was pl -ced
in possession of the agent of appellant
company for transportation. Also for
damages for loss of services of them
selves, employees, wagons, teams, etc
by reason Of their being unemployed for
that length of time, and the loss of profit
on their mills. The following charge is
given: "Iu estimating the damages
plaintiffs have sustained, you will take
into consideration the loss OF time, tue
expense of idle hands, the contracts
plaintiffs had for lumber, the corn plain
tiffs got to grind, and the profits arising
from running and operating the steam
mill, and multiplying the amount per
day, by the number of days would give
the amounts plaintiffs would be en-
titled to, not to include Sundays
This charge is assigned IS error Held:
II defendants agent knew that plaintiffs
had saw and grist mill, and that It's OPP
Grafton would be suspended until the
cylinder returned (and it is not denied
that this was sverred and proVeO) tnen
defendant would be liable for loss OF time,
prof g, etc. There was no error in the
chgrge complained Of. Notwithstanding
8 DELAY of four months in Baltimore OF
the cylinder, the loss of the two weeks
appears 8 natural and proximate result OF
defendants delay. 1t is insisted that the
court erred in refusing to charge the jury
in regard 10 limitation becau the
amended petition alleged that defendants
agent had notice that the operation OF
plaintiffs mill would be suspended until
they received back the cylinder, Consti-
tuted new cause for actioD, and that the
statute of limitations would run until
the amended petition was filed
Held: This allegation merely per-
fects the statement of a cause
of action effectively stated, and. did not
set up a new cause Of action. The con-
tract under which the cylinder Yves
shipped stated that defendant should not
be liable for any claim arising from the
contract unless the same was presented in
-ixty days. The court in effect charged
the Jury that they would not consider
this stipulation, and this instruction Is
assigned SIS error. Held: In this there
was no error. The contract being for q
shipment beyond the state does not come
under the operation Of our statute which
prohibits common carrier from limiting
their liability at common law. Any res
sonable restriction in the bill of lsding |
would be upheld, but this court has de-
cided that an unreasonable restriC ton |
will not be upheld. The stipulation was
not reasonable. II it had been stipulated |
thst claim should be made within sky |
days from the ascertainment of the loss, |
the case would have been different. At
frmed. Gaines, j.
Fl. Morrison VS. N. B. Daily; appeal
from Ellis. Appellant brought this suit |
in the court below to enforce the specific !
performance of q contract for the sale Of
land, which was evidenced by the follow |
ing memorandum in writing:
LANCASTER, June rs. 1887
Received from Il Morrison $40 on my
place, known as the James Perry tract OF
land, which tract l have sold him for
$4,000, part cash and the balance TO Dear
interest at 10 per cent. per annum until
paid.
TSigned MRS. N. B. DALEY"
Tne petition described the Land, set
forth specifically the terms Of the con-
tract, alleged q compliance on the part
of plaintiff by tender of the money and
promissory notes according to the al
legged terms of the contract; also
q refusal by defendant. Defend
ant demurred to the petition on the
ground, among others, that the mem
orandum was not in compliance with the
statute of frauds, because the description
of the land was insufficient, and second,
because the writing does not give the
terms Of the contract. The demurrer
was sustained and the ruling assigned as
error. Held: Error. The land was de-
scribed by metes and bounds and was
sufficient. All tnat is required is that the
premises shall be so described that they
can be definitely ascertained. By deter
mining what land the defendant owned at
the date of the contract, which YVES
proven as the James Perry tract, the
property sold could be identified with
certainty. Upon the proposition that the
memorandum does not sufficiently de-
scribe the contract, the authorities are IL
conflict. The weight of authority seems
to be, however, that the material terms
of the contract should appear IN the mem
orandum. We regard it as well settled
in this state that all the terms Of the con-
tract need not appear in the memoran
dunn. The description Of the contract
was sufficient. Reversed and remanded.
Gaines, j.